Hard National Security Choices

Last week, we brought you the first sets of filings in Moath Hamza Ahmed Al Alwi’s petition for a writ of certiorari. Al Alwi has now filed his reply to the government’s brief opposing his cert petition.

However, that provision merely restates and codifies extant authority, without bolstering the court of appeals’ findings or the government’s sweeping contentions. Indeed the NDAA expressly does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” NDAA § 1021(d). See also Statement by President Barack Obama Upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11 (Dec. 31, 2011) (noting that section 1021 “breaks no new ground and is unnecessary”); National Defense Authorization Act for Fiscal Year 2012, H.R. Rep. No. 112-329, at 695 (2012) (Conf. Rep.) (affirming that section 1021 does not affect existing law or authorities). In any event, the provision in no way dispenses with the need for a judicial finding in this and other cases that a force is an associated force engaged in hostilities and that a petitioner was a member of that force or substantially supported it. Pet. 29-34. Furthermore, that a branch of government has endorsed a particular standard does not preclude the Supreme Court from deciding whether its application has been lawful and sufficient.

About the Author

About the Author

Raffaela Wakeman is an evening student at Georgetown University Law Center, a former researcher at the Brookings Institution, and a legal intern with the Department of Treasury’s Office of General Counsel. The views expressed in this post are her own, and do not represent the views of the U.S. Government or the Department of Treasury. She was a full-time contributor to Lawfare from 2011 to 2014, most recently serving as an Associate Editor.

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Today, Israeli Prime Minister Benjamin Netanyahu delivered a speech before a joint session of Congress on a potential U.S. nuclear treaty with Iran. During the address, he declared, “This is a bad deal – a very bad deal. We’re better off without it.” NPR shares further analysis of Netanyahu’s speech. Partisan drama has surrounded the . . . Read more »

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